tion of damages; and the viewers who adjusted | ent rule in the classified cities from that prethe damages had nothing to say upon the vailing in the rest of the State. I need not at necessity for opening the street. This incon- this late day discuss the reasons which induced venience had been removed by the General this court in Wheeler v. Philadelphia, 77 Pa. Law of 1874 as to all the streets except the 338, to adopt the principle of classification. It plotted ones. is sufficient to say that without it there might have been a dead lock in machinery of the government. Our present difficulty, and in my opinion it is a serious one, I think may be fairly attributed to our departure from the principles there laid down. The doctrine upon which that case rests is that legislation for classified cities is not local, and if it applies to classes, and not to persons or things of a class, it is not special. There is no other ground upon which classification can be sustained. An Act passed for all cities of a class is a general law and not local, for the reason that its operation is not confined to any one city. And if it applies to all persons or things of a class it is not a special law. As was said in Wheeler v. Philadelphia: "This construction does not open the door to special legislation. It permits legislation for classes, but not for persons or things of a class. As an illustration, it could not be held to authorize the Legislature to open a particular street in a city of either class named in the Act referred to."

What remained to be done was to repeal the local system and extend the provisions of the General Law relating to the duty of the viewers appointed to lay out streets, to those appointed to open streets laid out and plotted by the city. This is effectually done by the first and second sections. It is true that the form of the Act of 1887 is not that of a general law, not does it in terms profess to repeal the local system and extend the General Law in its place, but in substance and effect it provides for just the change needed. The fact is of more importance than the form, and the fact is that the Act of 1887 wipes out the old system by which the necessity for opening a street went to one view and the damages to another, and puts in its place the provisions of the General Law committing the assessment of damages to the viewers whose report in favor of opening made the assessment necessary. In this way both subjects come to the attention of the same viewers at the same time; and upon their report both subjects come to the attention of the court at the same time. These sections do not simply tend to uniformity, but they accomplish it. Their effect is to bring under one system, and that the system provided for the whole State, by general law, all cases of assessments of damages and benefits upon the laying out of new, or the opening of plotted, streets. It is true these sections relate only to cities of the first class, but so did the local laws which they supply. The remedy is as broad as the evil to be corrected. A law which repeals a local law must of necessity affect only the locality in which the local law prevailed, but it is not therefore a local law within the meaning of the Constitution. It does not set up, but it destroys, a local system and thereby extends the general law over the territory previ ously withdrawn from its operation. So with the Act of 1887 so far as the first and second sections are concerned. They take away the previously existing system for the assessment of damages for the opening of plotted streets which was local and rested on local laws, and put the system provided by general law in its place. For this reason we think they do not offend against the Constitution. These conclusions lead us to affirm Washington Street and to reverse the proceedings in Ruan Street. Let judgment be entered accordingly. Clark, J., and McCollum, J., concur in the judgment, but dissent from so much of the opinion as sustains the constitutionality of sections 1 and 2 of the Act of May 6, 1887.

It was this kind of special legislation which was the cause, in a great measure, of the adoption of this feature of the Constitution. It had often happened that when the courts or the councils of a city had refused to open a particular street, interested parties would procure the passage of an Act of Assembly ordering such opening. This was the evil which was prohibited by the Constitution, and it can no more exist now under classification than it can without it.

If, then, legislation for classified cities is neither local nor special, it does not come within the prohibition of art. 3, § 7, of the Constitution. It follows logically from this, as I view it, that it is for the Legislature to say what legislation is needed for a classified city, and that it is not a judicial question at all. This is a plain rule, easily understood, which leaves the Legislature free to enact such laws as the wants of classified cities require. Concede that it must be limited to matters affecting their government. What can be more vital to the good government and welfare of a city, and to the material interests of its inhabitants, than the control of its streets? Why may not a classified city have the power to direct the opening of streets and the assessment of the damages therefor? Must the damages for the widening of Chestnut Street, which may amount to millions of dollars, be assessed precisely in the same manner as for the opening of a road in the Hemlock Forests of Pocono Mountains? Why should we have an ironclad, inflexible rule which cannot be enforced without injury to the one section or the other, The difficulty we have had in deciding this when neither section demands it, or would be and other cases involving the constitutionality benefited by it? In my opinion all that relates of legislation affecting classified cities ought to to the local affairs of the municipality, the conadmonish us that we are at sea without any trol of the streets, its gas and water supply, its recognized, intelligent rule to guide us. We markets and many other matters which might have been struggling towards "uniformity," be mentioned, are proper subjects of municipal and making that a test of the constitutionality control and may be safely left to such municof this class of legislation, whereas the very ipalities. As to all such matters those comobject of classification is to allow a differ-munities can best govern themselves, and I

Paxson, Ch. J., dissenting:

MARYLAND COURT OF APPEALS.

A railroad company can make a contract with a Lewis, Em. Dom. 355.

See also 26 L. R. A. 443; 41 L. R. A. 403; 45 L. R. A. 223.

of way which it could assign, the grant is void as against public policy.

W. U. Teleg. Co. v. Am. U. Teleg. Co. 65 Ga.

160.

Miller, J., delivered the opinion of the

court:

| from in these eight cases without considering the question whether the appeals or any of them should be dismissed because of the fact that the answers of the defendant are not under its corporate seal.

In the other two cases [those of Smith and McIntosh], the appeals are from pro forma orThese ten cases were argued together, and as ders refusing to dissolve the injunctions upon they present substantially the same questions, bills, answers and proof. In these cases the they will be disposed of in one opinion. They defendant corporation in its answers avers that are all bills filed by separate land owners in it is proceeding to construct its line of poles and Baltimore County seeking to enjoin the "Amer-wires along and on the right of way of the ican Telephone & Telegraph Company of Bal- Maryland Central Railway Company, under a timore City," a corporation incorporated un-contract with that company made on the 29th der the General Corporation Law of this State, from erecting telegraph poles, and constructing a telegraph or telephone line of wires on and over the lands of the several complainants. Eight of the appeals are from orders granting preliminary injunctions upon the several bills. It is well settled that in deciding an appeal from such an order this court can look only to the case made by the bill, though the defendant is required to file an answer before he can appeal, and the answer must appear in the rec-its passenger travel and freight tonnage; and ord. Blackburn v. Craufurd, 22 Md. 447.

The question then is, Does each of these eight several bills make out a case for the granting of such an injunction?

of April, 1889, for the use and benefit of the railway company in operating and running its cars; that the railway company has the right to place telegraph poles and wires, and telephone wires and poles, over and upon its right. of way for the use and operation of its railroad,. and as many as may be necessary for operating its road, and for the safety of the public who travel over the same, for the purpose of facilitating the business of the road, and increasing

that the railway company could do this itself or employ some other company to do it for it, and the complainants have therefore no right to interfere.

The bills all aver and charge in substance These answers disclose what is obviously the that the defendant Company has recently de real controversy in all these cases. On the one posited large and heavy poles upon the lands side the land owners from whom the railroad of the complainants along the line of the Mary- company obtained the right of way for the land Central Railroad, and is engaged in set-construction of its railroad insist that the conting up said poles, or is about to do so, without their permission or consent; that the erection of these poles and the stringing of wires there on is injurious to their property and is an appropriation of private property for public use without compensation or tender thereof to the complainants, and that they are entitled to have the defendant restrained and enjoined from erecting said poles and stringing wires thereon on and over their lands until it has acquired the right to do so by condemnation of the lands for such use, or otherwise.

struction of this telegraph and telephone line will impose an additional servitude or burden on their lands for which they are entitled to compensation, and that the line cannot be constructed until the corporation or corporations undertaking its construction have first complied with the requirement of the Constitution in regard to taking private property for public use. On the other hand the Telegraph & Telephone Company contends that it is constructing this line upon the right of way of the railroad company under a contract with that company for its use and to facilitate the operation of its road, and to increase its business, and in this contention it is aided by the rail

line has also been placed in argument, upon other grounds which will be noticed hereafter.

We have no doubt as to the sufficiency of these averments or of the jurisdiction of a court of equity to grant an injunction in such cases. A corporation created for the purpose of trans-road company. The right to construct thismitting messages by telegram or telephone is, with respect to its right to construct its lines over private property, just as much subject to the provisions of art. 3, § 40, of the Constitution as is a railroad or any corporation clothed with the power of taking private property for public use. Lewis, Em. Dom. § 172; Mills, Em. Dom. § 21.

This clause of the Constitution is too plain to admit of any doubt, and the averment that the defendant is proceeding or threatens to proceed to construct its line of poles and wires on and over the complainants' land without their leave or license, and without paying or tendering to them compensation for the use of their lands for this purpose, is of itself enough. The court could not properly refuse an injunction in the face of such averment. The nature of the damage complained of, whether irreparable or not, has nothing to do with the question when thus presented. Western Maryland R. Co. v. Owings, 15 Md. 199.

Before considering the facts we must ascertain the law applicable to such cases, and this is not altogether free from difficulty. Not many instances have occurred in which land owners have asserted such claims, and the cases in which the precise question before us has been raised are comparatively few. In the most recent text book on Eminent Domain it is said: "A line of telegraph on a railroad right of way is an additioual burden unless constructed for the use of the railroad company in the operation of its road and dispatch of its business." Lewis, Em. Dom. § 141.

In Mills, on Eminent Domain, $ 59, the author approvingly quotes part of the opinion of the court in W. U. Teleg. Co. v. Rich, 19 Kan. 517. That case is also referred to by Lewis, has been strongly pressed upon our attention, and therefore requires a careful examination. It was a suit by a land owner against the WestWe shall therefore affirm the orders appealed | ern Union Telegraph Company to recover dam

We have thus quoted this opinion at length, because it is a very clear statement of the law which we are willing to accept. It recognizes the right of the land owner to compensation for every additional burden cast upon the land outside the scope of the original easement, and that whether a given structure creates an additional servitude is a question of fact, depending on the circumstances of each case to be deter mined by the tribunal having jurisdiction to try the same, and before which it is tried. We cannot adopt the view taken by counsel for the appellant that this question must in all cases be determined by the judgment and opinions of the railroad officials or employés. In a case where the question was whether a certain building was a necessary building within the terms of a railroad charter, that question was determined by this court itself upon proof as to the character of the building, its location and the purposes for which it was constructed and used. Hamilton v. Annapolis & E. R. Co. 1 Md. 560.

ages for cutting dowu trees on his land. The burden. Of course if the trees were not upon trees were on or close to the right of way of the right of way, it is immaterial whether the the Atchison, Topeka & Sante Fé Railroad, defendant built the line alone, or jointly with and were cut down to make room for the tele- the railroad company, for, in the latter case, graph poles and to prevent interference with either would be responsible for the entire damthe telegraph wires. The defendant sought to ages. We cannot, of course, pass upon this prove that the telegraph line was built jointly question of fact, for we cannot tell what the by it and the railroad company under an ar testimony, if admitted, would have disclosed. rangement for its joint use by the two compa- It is enough that the testimony offered ought nies, and introduced a witness to prove that the to have been admitted, and then the jury inline of telegraph was built jointly by the two structed that if the facts were as defendant companies for the use of the railroad company sought to prove them to be, the defendant was in the moving of its trains and the transaction liable for only the damages caused by the adof its business, that it was part of and neces-ditional burden, if any, its use of the telegraph sary to its business, and was built on and over cast upon the land." the right of way of the railroad company. The lower court rejected this testimony, and this ruling was held to be erroneous. This was the sole question decided and in deciding it the court said: "A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business, and to the speedy and safe running of its trains, that the railroad company has a right to build it, to use its right of way therefor, and to remove all obstructions thereon to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to its use for railroad purposes, yet a telegraph is so convenient, if not indispensable, that it may cut down every tree and bush on the right of way if necessary for the most constant and efficient use of a telegraph line built by it over and upon such right of way, just as it may dig away a bill or fill up a ravine for the sake of a water tank or a station-house. By so doing it gives the adjacent land owner no claim for damages. Such use is contemplated in the original condemnation, and the We entertain no doubt whatever as to the damages resulting therefrom are part of the right of a railroad company to construct on damages included in the assessment thereof. and over its right of way a telegraph or teleIn short, the railroad company may use its phone line, for its use in the operation of its right of way not merely for its track, but for road and dispatch of its business; and it may any other building or erection which reason- do this by itself, or may employ another comably tends to facilitate its business of transport-pany to do it, or may do it conjointly with ing freight and passengers, and by such use in another company. If, then, this line is in no manner transcends the purposes and extent process of construction, or is about to be conof the easement, or exposes itself to any claim structed over the right of way of this railway for additional damage to the original land company in good faith for the use and benefit owner. So tha if the railroad company had of the latter in the operation of its road and to built this line by itself and independent of the facilitate its business, or is reasonably necesdefendant and in doing so had only cut down sary for that purpose, the land owners have no trees upon its right of way, it is clear that the ground of complaint because such use of their plaintiff would have no cause of action there- land is within the scope of the original easefor. Does the fact that it took a partner in the ment for which they have already received construction and use of the telegraph expose it, compensation. But, on the other hand, if this or such partner, to any liability to the land is not the motive for its construction, and the owner for the full value of the trees cut down main object in constructing it is to establish an upon its right of way? We think not. If the extensive line of telegraph and telephone comrailroad company could build by itself without munication through this and other States for liability, it did not assume liability by build-general commercial purposes, for the use and ing with another. Whatever it could do and benefit of the defendant, and such a line is not would have done for its own use and benefit, reasonably necessary for the purposes of the and was so done, was, so far as the land owner railroad, then it will be a new easement and is concerned, damnum absque injuria, no mat- put a new and additional burden upon the land ter who bore the expense; or perhaps, more for which the owners are entitled to compensacorrectly, it was damages already paid for. tion. This question will be decided when we We do not question that every additional bur- come to consider the facts; but we must first den cast upon the land outside of the purpose notice the other grounds upon which the right and scope of the original easement, no matter to construct this line is sought to be placed. in whose behalf, gives the land owner new claim for compensation. But such compensation is limited to the extent of the additional

By an Act of Congress, approved July 14, 1866, it is provided among other things that any telegraph company now organized, or

tional burden thereof cast upon his land arisen. We have always understood that the right of way of a railroad chartered by and running through a State is the private property of the railroad corporation, and that the land through which it runs, subject to the easement of the railroad, is the private property of the respective land owners, and we cannot understand how Congress, by declaring such road to be a "post-road," can deprive either the railroad corporation or the land owners of these property rights, or how it can confiscate them for the benefit of telegraph companies; nor do we think it was the intention of Congress by these enactments to do any such thing. Whatever may be their effect in other respects, we think it clear they are not susceptible of the construction, and have not the effect sought to be given them by counsel for the appellant. In our judgment they do not give a telegraph company, when it proceeds to construct its lines over a railroad right of way, immunity from the restriction by which the Constitutions of all the States, as well as of the United States, have carefully protected the owners of private property when taken by the exercise of the power of eminent domain. In our opinion, therefore, these Acts give no aid to the defendant in regard to the question now before us; and much less does the subsequent Act, approved June 23, 1879, which is also relied on. This latter Act is the Appropriation Bill for the support of the army for the fiscal year ending June 30, 1880, and in a paragraph making an appropri ation for the cost of telegrams and for other purposes a clause is interjected which declares that "telegrams are authorized to be transmitted by railroad companies which may have telegraph lines and which shall have filed their written acceptance" of the Act of 1866, "for the government and for the general public at rates to be fixed by the government." It is obvious this clause has no bearing on the question now under consideration.

which may hereafter be organized under the laws of any State in the Union, shall have the right to construct, maintain and operate lines of telegraph over and along any of the military or post-roads of the United States, which have been or may hereafter be declared such by Act of Congress," provided such lines "shall not be so constructed as to interfere with the ordinary travel" on such roads, and provided also "that before any telegraph company shall exercise any of the powers or privileges conferred by this Act such company shall file its written acceptance with the postmaster general of the restrictions and obligations required by this Act." Congress afterwards, in 1872, declared all the railroads in the country which are now or may hereafter be in operation to be "postroads.' There is nothing in these records to show that the defendant has filed its acceptance of the Act of 1866, but as this can readily be done it is proper we should give our views of the construction and effect of these Statutes. We cannot suppose it was the intention of Congress by these enactments (even if it had the power to do so), to put the right of way of every railroad in the country at the mercy of the telegraph companies, and allow the latter to use them for the construction of their lines without making compensation to anyone therefor. Such a construction was wholly repudiated by Judge Drummond in the case of Atlantic & P. Teleg. Co. v. Chicago, R. 1. & P. R. Co. 6 Biss. 158, and by Judge Harlan in Western Union Teleg. Co. v. American Union Teleg. Co. 9 Biss. 72. In the latter case it is expressly said that under this Act the telegraph companies must obtain the consent of the owners of the right of way or condemn the same for telegraph purposes and make compensation therefor. We have not been able to discover that the views of these judges on this point have ever been overruled by the supreme court in any of its numerous decisions on this Statute. On the contrary, in Pensacola Teleg. Co. v. Western Union Teleg. Co., 96 U. S. 1 [24 L. ed. 70×1, that court said: "This Act gives no foreign corporation the right to enter upon private property without the consent of the owner, and erect the necessary structures for its business; but it does provide that whenever the consent of the owner is obtained, no state legislation shall prevent the occupation of post-roads for telegraph purposes by such corporations as are willing to avail themselves of its privileges;" All that need be said in regard to these secand again: "No question arises as to the au- tions is that, if they contain any provision authority of Congress to provide for the appropri-thorizing the construction of telegraph lines on ation of private property to the uses of the telegraph companies, for no such an attempt has been made. The use of public property alone is granted. If private property is required, it must, so far as the present legislation is concerned, be obtained by private arrangeIment with its owner. No compulsory proceedings are authorized. State sovereignty under the Constitution is not interfered with. Only national privileges are granted."

In all the cases in the supreme court where telegraph companies have constructed their lines on the right of way of railroad companies in the States, they appear to have done so by consent or under agreement with such companies, and in none of them has the question as to the right of the land owner to compensation for the addi

Again, it is contended that the defendant is empowered to construct this line by the statute law of this State, and cannot be restrained from doing so by injunction; but for any damage done to private property thereby the owners must seek redress by an action at law. For this position reference is made to the sections of the Code relating to telegraph companies. Code, art. 23, § 222–226.

and over private property in the first instance, and then requiring the property owners to seek compensation afterwards by an action at law for damages, it is in conflict with the constitutional provision referred to, which requires the just compensation agreed upon or awarded by a jury to be first paid "or tendered," that is before the property is taken. This provision of the Constitution is of course controlling, and that it applies to the case of property taken for the construction of telegraph lines, there can, we think, be no reasonable doubt, for we regard it as now well settled that use of property for this purpose is a "public use. "A telegraph or telephone line," says Lewis, "designed for the service of the public and subject to regulation by the Legislature, is a public use